Arizona Guard reins in whistle-blowers

Mar. 27, 2013 - 12:26PM
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PHOENIX — Amid an investigation of corrupt conduct in the Arizona National Guard, soldiers and airmen have been issued strict ethics guidelines that include restrictions on whistle-blower disclosure of agency information.

Maj. Gen. Hugo Salazar published the "Code of Ethical Conduct" earlier this year during the early stages of an independent review of Guard discipline. That review was prompted by an Arizona Republic investigation raising ethical and leadership questions.

Matthew Benson, Arizona Gov. Jan Brewer's spokesman, said the findings from that review are expected within two weeks.

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The new ethics code, in a section subtitled "Protection of Agency Records and Information," tells Guard members that "only designated individuals" may speak out.

Accompanying guidelines warn that "any release of agency information to the public or media must go through either the Public Affairs Office or the Staff Judge Advocate's Office."

The new code was issued Jan. 15 to all members of the Arizona Department of Emergency and Military Affairs, which includes the Guard and the state Division of Emergency Management. It was accompanied by a letter from Salazar urging personnel to conduct themselves with honor and integrity — "sustaining a place where we are all proud to serve."

The code advises Guard personnel that they must report alleged misconduct to commanders and stresses a "zero-tolerance policy toward reprisal" against whistle-blowers.

However, guidelines protect whistle-blowers only for communications to members of Congress or within armed-forces channels. Revelations to watchdog organizations or media are not covered.

The Republic's ongoing reporting on corruption has been based largely on information from dozens of Arizona Guard members who say that the chain of command fails to combat wrongdoing and that complainants frequently are subject to retaliation.

They also say reports filed with the federal inspector general, the Arizona Governor's Office, the National Guard Bureau and members of Congress typically are referred back to Arizona Guard command. Many of the soldiers and airmen provided documentation for those assertions.

Experts on law and ethics said the new policy is confusing because it does not define "agency information" and therefore may be perceived as a free-speech violation.

"To the degree that there's a mandate and you can't talk to the press, that could be problematic," said Kathleen Clark, a law professor at Washington University in St. Louis who teaches and writes about whistle-blowing.

Tom Devine, legal director for the non-profit Government Accountability Project, which operates whistleblower.org, said Guardsmen are a hybrid of state and federal military with the legal rights of neither.

"National guards have been in a unique loophole to all whistle-blower protections," Devine said. "They end up with the worst of all possible worlds."

Richard Moberly, associate dean and a law professor at the University of Nebraska-Lincoln, said military organizations understandably require extra security, but that makes transparency and oversight problematic.

"There's more reason for secrecy," he said. "Of course, that allows for the ability to cover up."

Moberly said military systems falter when personnel feel compelled to go outside the agency because a leadership culture is perceived as corrupt.

"Here's where whistle-blower protections fail: if the highest people in an organization allow misconduct to continue or if you have a culture of closing ranks and the whistle-blower becomes an outlier because they question authority," he said.

Salazar, the state's top military officer, has declined to comment to The Republic since October, when a series of articles exposed widespread criminal conduct, retaliation and lax discipline in a state Guard with about 8,000 personnel.

The series described repeated incidents of sexual abuse of high-school cadets, recruiting fraud, drunken driving, fraternization, assaults, embezzlement, cronyism and reprisal against those who reported misconduct.

Salazar previously acknowledged that the recruiting command had become corrupt but said misconduct, lax discipline standards and other leadership failures were addressed. He stressed the integrity of most Guard members and denied the existence of a rogue environment.

In November, Brewer assigned Maj. Gen. Ricky Adams to conduct a "full, fair and independent review." An Arizona Guard spokesman said in mid-January that Adams had completed his interviews and was expected to submit an investigative report by month's end.

However, since then, numerous officers and enlisted soldiers have reported additional interviews conducted by Adams' staff. Adams declined to comment.

The Arizona review coincides with a national scandal involving sexual abuse and harassment in the military. Reaction to that scandal has included Senate hearings two weeks ago and an ongoing investigation of rapes at Lackland Air Force Base in Texas.

The Defense Department has estimated 19,000 sexual-abuse incidents annually in the military with one perpetrator in 100 held accountable.

Commanders from all military branches testified about reforms instituted to combat sexual misconduct. But some U.S. senators, troubled by a permissive atmosphere, have advocated changes in the way rapes are investigated, including possible civilian prosecutors and oversight.

Brewer previously has stressed that the review of Arizona's Guard would be independent.

Adams is a member of the Oklahoma National Guard who works in his civilian life as an administrator with Oklahoma's Department of Public Safety. He also serves as deputy commanding general with the Army Training and Doctrine Command in Virginia, which provides leadership instruction for soldiers.

Adams is working in Arizona through the National Guard Bureau, an administrative agency also based in Virginia.

Like Salazar, Adams ascended through artillery commands. E-mails obtained by The Republic show that when Adams first contacted Salazar about conducting the inquiry, his salutation read, "Hello, Hugo!"

Those e-mails also indicate that the Arizona Guard attempted to conduct an online survey during the past few months, asking soldiers and airmen to evaluate morale, leadership, integrity and stress.

Results have not been released. Records indicate the poll could be flawed if personnel chose to submit multiple entries.

Since the newspaper series was published in October, numerous soldiers and airmen have come forward with additional examples of misconduct and cover-ups.

The Republic sought documentation for many of those incidents under Arizona's Public Records Law. In response, the Guard terminated a policy of releasing investigative files.

Legal advisers for the state agency announced that investigative records must be obtained under federal law, via the Freedom of Information Act. To date, the U.S. Army, National Guard Bureau, Air Force and Arizona Guard have not provided investigative materials.

Military documents obtained independently by The Republic show that Arizona Guard problems include numerous cases of recruiting fraud, part of a problem found to be epidemic in the military.

The Washington Post reported last year that about 1,700 recruiters were under investigation nationwide. Guard officials declined to comment or provide records on Arizona cases.

The Republic also sought an interview with Brewer and, in a letter, asked that she direct the Guard to provide investigative files as required by state law. Benson said the governor would not respond.